DEPARTMENT OF ATTORNEY GENERAL

Peter F. Kilmartin, Attorney General

ACCESS TO PUBLIC RECORDS ACT &

OPEN MEETINGS ACT

INDEX

Section I — The Access to Public Records Act

Findings – (2015) ............................................................................................. 1-19 Advisory Opinions – (2015) ......................................................................... 19-20 Access to Public Records Act Statute ......................................................... 21-30

Section II — The Open Meeting Act

Findings – (2015) ........................................................................................... 31-35

Advisory Opinions – (2015) .............................................................................. 35

Open Meetings Act Statute.......................................................................... 36-43

Section III — Procedures & Forms Public Records Request Guidelines ................................................................ 44 Public Records Request Form .......................................................................... 45 Rules and Regulations Regarding Training Under the Access to Public Records Act................................................................ 46-47 Certificate of Compliance ................................................................................. 48 Open Meetings Act & Access to Public Records Act Checklist .............. 49-54

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SECTION I

ACCESS TO PUBLIC RECORDS ACT

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ACCESS TO PUBLIC RECORDS ACT FINDINGS – 2015 PR 15-01 Clark v. West Glocester Fire District (February 3, 2014)

The Complainant sought minutes for executive sessions convened on July 23, 2013, November 5, 2013, and November 19, 2013. Because the July 23, 2013 executive session minutes were not sealed, these executive session minutes were public records. Conversely, because the November 2013 executive session minutes were sealed, these documents were exempt from public disclosure. See R.I. Gen. Laws § 38-2-2(4)(J). The Fire District’s denial adequately provided the reasons for the denial and no evidence was submitted that the denial was based upon the reason the records were sought. The Fire District was directed to provide the Complainant copies of the July 23, 2013 executive session minutes.

VIOLATION FOUND. Issued January 8, 2015. PR 15-02 Kurland v. Providence Department of Public Safety

The Complainant alleged that the Department of Public Safety (“DPS”) violated the APRA when it failed to timely respond to her APRA request, dated Saturday, October 18, 2014, and received by the DPS on Monday, October 20, 2014. The DPS responded on November 3, 2014. Upon receipt of a records request, a public body is obligated to respond in some capacity within ten (10) business days, either by producing responsive documents, denying the request with a reason(s), or extending the time period necessary to comply. See R.I. Gen. Laws §§ 38-2-7, 38-2-3(e). We concluded that the DPS correctly calculated the due date, namely ten (10) business days from the receipt of the APRA request. See Burke v. Rhode Island College, 671 A.2d 803 (R.I. 1996); Young v. Town of Hopkinton, PR 05-10; and Rhode Island Superior Court Rules of Civil Procedure 6(a). All of these authorities make clear that the date an APRA request is received is not counted as the first business day. Issued February 2, 2015.

PR 15-03 Felise v. East Bay Energy Consortium

The Complainant alleged that the East Bay Energy Consortium (“EBEC”) violated the APRA by withholding various documents. Our in camera review found that many documents listed in the EBEC privilege log were not responsive to the APRA request and other documents that may have been responsive were exempt from public disclosure. See R.I. Gen. Laws § 38-2-2(4)(A)(I)(a) and (K). Issue February 3, 2015.

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PR 15-04 CVDDI, LLC v. Town of Smithfield The Complainant alleged that the Town violated the APRA when it failed to provide a sufficient explanation for extending the time to respond to his APRA request, as required by R.I. Gen. Laws § 38-2-3(e). Complainant’s request sought any documents maintained by the Town “in any way relating to the property located at 320 Stillwater Rd.” and contained no time frame limiting the search. Based on the broad nature of the request and the nearly thirteen (13) hours the Town exhausted “searching for, compiling, sorting, and printing out the requested records,” we concluded that the Town did not violate the APRA when they extended the time to respond and that the Town’s basis for the extension – “due to the scope and breadth of [the] request” – was particularized to the request.

Issued February 6, 2015. PR 15-05 Durand v. Warwick Board of Canvassers

The Complainant alleged the Warwick Board of Canvassers (“Board”) violated the APRA when he made an oral request for a site map and the Board required him to complete a form. The APRA provides that “[e]ach public body shall establish written procedures regarding access to public records but shall not require written requests * * * for other documents prepared for or readily available to the public.” See R.I. Gen. Laws § 38-2-3(d). The fact that the Board required the request be in writing did not violate the APRA since no evidence had been presented that the site map was “prepared for or readily available to the public.” If the Board had required the Complainant to fill out its APRA form to the exclusion of other forms of writing, or if the Complainant had refused to complete the APRA form, yet put the request in writing such that it was “otherwise readily identifiable as a request for public records,” we may very well have a different view of this matter. Because no evidence has been submitted to substantiate this version of events, we found no violation. Issued February 9, 2015.

PR 15-06 Nangle v. Town of North Smithfield

The Town of North Smithfield (“Town”) did not violate the APRA when it denied the Complainant’s APRA request seeking the names and email addresses of individuals who receive the Town’s newsletter. We concluded, based upon the evidence presented, that disclosure of the names and email addresses of those who subscribe to a Town’s newsletter will not shed any light on government operations. Balanced against a minimal, if any, “public interest,” we perceive a greater privacy interest. See Fuka v. RI Dept. of

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Environmental Mgmt, 2007 WL 1234484 (the home addresses of licensed fishermen were exempt under the APRA); United States Department of State v. Ray, 502 U.S. 164 (1991)(disclosing names of illegal emigrants constituted clearly unwarranted invasion of personal privacy); Bibles v. Oregon Natural Desert Ass’n, 519 U.S. 355 (1997)(mailing list containing names and addresses where newsletter sent not a public record). Issued February 16, 2015.

PR 15-07 Murphy v. City of Providence

The Complainant alleged the City of Providence (“City”) violated the APRA when it did not provide her any records responsive to her June 21, 2014 APRA request. There was simply no evidence to demonstrate that the City’s search for the requested records was unreasonable or that the City maintained the requested records. We were presented no evidence to establish that the City had responsive documents that it refused to provide to the Complainant. This Department has previously held that the failure of a public body to produce records that do not exist does not violate the APRA. See, e.g., O’Rourke v. Bradford Fire District, PR 13-11; Hazelwood v. Town of West Greenwich, OM 13-09; Tetreault v. Lincoln School Committee and Superintendent of Schools, PR 99-14. See also R.I. Gen. Laws § 38-2-3(h). Issued February 17, 2015.

PR 15-08 DesMarais v. Manville Fire Department (May 14, 2014 Complaint) The Fire Department violated the APRA when it failed to timely respond to Complainant’s APRA request. Specifically, the undisputed evidence showed that on February 24, 2014, Complainant filed an APRA request with the Fire Department and on March 10, 2014, the Fire Department extended the time to respond an additional twenty (20) business days but no further response was provided by the Fire Department until approximately seven months after the APRA request was received. This Department previously confronted this issue in DesMarais v. Manville Fire Department Board of Wardens, PR 12-05. The Fire Department was allowed ten (10) business days to provide a response explaining why this Department should not find its failure to timely respond to Complainant’s APRA request knowing and willful, or alternatively, reckless, in light of the Fire Department’s recognition of the APRA requirements and this Department’s precedent. A supplemental finding will follow. VIOLATION FOUND. Issued February 20, 2015.

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PR 15-08B DesMarais v. Manville Fire Department/District After viewing all the evidence presented, this Department determined sufficient evidence to conclude that the Fire Department knowingly and willfully violated the APRA when it failed to timely respond to Complainant’s APRA request. Accordingly, this Department filed a lawsuit against the Fire Department seeking civil fines. See R.I. Gen. Laws § 38-2-9. LAWSUIT FILED. Issued April 13, 2015.

PR 15-09 Fusaro v. Westerly Police Department

The Complainant alleged that the Westerly Police Department (“Police Department”) violated the APRA when it improperly denied her APRA request seeking “a copy of [her] police background check * * * including the detective notes.” This Department was provided with copies of records the Police Department exempted from disclosure and determined that these documents contain information consistent with a background check on the Complainant, as well as information obtained from third parties. Rhode Island General Laws § 38-2-2(4)(A)(I)(b) exempts from disclosure “[p]ersonnel and other personal individually-identifiable records otherwise deemed confidential by federal or state law or regulation, or the disclosure of which would constitute a clearly unwarranted invasion of personal privacy pursuant to 5 U.S.C. 552 et. seq…[.] (Emphasis added). Considering the nature and content of the requested documents, as well as the arguments and evidence presented, there exists little to no public interest adequate to overcome the clearly unwarranted invasion of personal privacy that would result from disclosure.

Issued February 19, 2015. PR 15-10 Saunders v. RI Division of Lotteries

The Complainant alleged the Rhode Island Division of Lotteries (“Division”) violated the APRA when it improperly denied a September 17, 2014 APRA request. The Division sent an email indicating that the estimated time to produce the requested documents would be approximately 140 hours for an estimated fee of $2,100. With respect to pre-payment of the fees, we have previously found that the APRA does not prohibit a public body from requesting pre-payment of fees. See Smith v. Watch Hill Fire District, PR 99-15. Moreover, ever since the 2012 APRA amendment, the APRA expressly allows an entity, such as the Division, to require prepayment for “costs properly charged” and provides that in such a case “the production of records shall not be deemed untimely if the public body is awaiting receipt of

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payment.” R.I. Gen. Laws § 38-2-7(b). No argument or evidence was presented that the estimated fee was improperly charged. Additionally, we cannot conclude the Division violated the APRA when it decided not to grant a fee waiver, and also observe that the APRA allows a court to reduce or waive the costs to fulfill an APRA request. Issued March 9, 2015.

PR 15-11 Paiva v. Rhode Island Department of Corrections

The Complainant submitted an APRA request for copies of employment applications and the name and contact information for the doctors’ medical insurance carriers. The Department of Corrections (“DOC”) denied Complainant’s request on the basis that disclosure would constitute a “clearly unwarranted invasion of personal privacy.” See R.I. Gen. Laws § 38-2-2(4)(A)(I)(b). With respect to one employment application (our investigation revealed that the second employment application did not exist), we concluded that the public interest outweighed the privacy interest asserted by DOC, and that disclosure of the employment application, after redacting the information contained in the employment application that would constitute a “clearly unwarranted invasion of personal privacy,” would advance that interest. See Jackson v. Town of Coventry, PR 14-35. With respect to the name and contact information of the doctors’ medical insurance carriers, we concluded that the insurance information sought would “reveal[] little or nothing about [DOC’s] own conduct,” and that even the most minimal privacy interest outweighed the non-existent “public interest.” See Reporters Comm., 489 U.S. at 749, 109 S.Ct. at 1481-82. Therefore, we found that DOC violated the APRA when it denied access to the employment application en toto. VIOLATION FOUND. Issued March 13, 2015.

PR 15-12 Smith v. RI Dept. of Education (August 15, 2013 APRA Request)

Smith v. RI Dept. of Education (September 25, 2013 APRA Request) Smith v. RI Dept. of Education (May 5, 2014 APRA Request) The Complainant filed three (3) APRA complaints against the Rhode Island Department of Education (“RIDE”) regarding various documents pertaining to the West Bay Collaborative (“WBC”). As such, we consolidated all three complaints into a single finding. Although all three complaints raised several allegations, based on the evidence presented, we concluded RIDE violated the APRA on two occasions. First, we concluded that RIDE violated the APRA when it

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failed to provide Complainant with the redacted source documents responsive to Complainant’s request. Second, we found that RIDE violated the APRA when it “granted” Complainant’s request for responsive documents that did not exist.

VIOLATION FOUND. Issued March 13, 2015. PR 15-13 Smith v. Warwick Public School Department

The Complainant alleged that the School Department violated the APRA when it failed to provide notice of the appeal process in its denial. Under the APRA, “[a]ny denial of the right to inspect or copy records…shall be made to the person or entity requesting the right in writing giving the specific reasons for the denial within ten (10) business days of the request and indicating the procedures for appealing the denial.” See R.I. Gen. Laws § 38-2-7(a). Based on the evidence presented, we found that by not providing Complainant with documents responsive to the request because the School Department did not maintain such documents, Complainant’s request was denied. Therefore, we concluded that the School Department violated the APRA when it failed to indicate the appeal procedure in its denial letter. VIOLATION FOUND. Issued March 16, 2014.

PR 15-14 Bicki v. City of Woonsocket The City did not violate the APRA when it did not produce documents not within the City’s possession as of the date of Complainant’s APRA request and/or not responsive to the plain language of the request. Specifically, Rhode Island General Laws § 38-2-3(h) provides, in pertinent part, that “[n]othing in this section shall be construed as requiring a public body to reorganize, consolidate, or compile data not maintained by the public body in the form requested at the time the request to inspect the public records was made.”

Issued March 27, 2015. PR 15-15 The Providence Journal v. Rhode Island Department of Health

The Providence Journal filed an APRA complaint because the Department of Health created a document that listed the number and location of drug overdose deaths, but did not list the number of overdose deaths in municipalities that had five (5) or less deaths, and otherwise listed “unknown location” in situations where the location of death was undetermined. The Department of Health did not maintain a single document responsive to the APRA request and the

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APRA did not require the Department of Health to create a document for purposes of fulfilling an APRA request. See R.I. Gen. Laws § 38-2-3(h). Moreover, R.I. Gen. Laws § 23-3-23 provides that “it shall be unlawful for any person to permit inspection of, or to disclose information contained in, vital records, or to copy, or issue a copy, of all or part of any vital record[.]” The term “vital records” includes records relating to death, and “data related to those records.” R.I. Gen. Laws § 23-3-1(18). Lastly, the Department of Health’s records were not susceptible of determining the number of opioid related overdose deaths, as requested, and also could not further breakdown the location of the “unknown” deaths. Issued April 24, 2015.

PR 15-16 Bath v. Rhode Island Office of Health and Human Services

The Complainant alleged that EOHHS failed to comply with R.I. Gen. Laws § 38-2-3(e) when it extended the time to respond to the two (2) APRA requests without providing a “particularized” explanation, and that EOHSS did not have “good cause” to extend the time to respond to a December 10, 2014 APRA request. While not determinative, there is no dispute that the December 18, 2014 correspondence did reference the subject-matter of the December 5, 2014 and December 10, 2014 APRA requests, and indicated additional time was required to allow staff to complete its search, retrieval, and production. Considering the volume, breadth, and sequence of the APRA requests, we have no doubt that this extension fell within the scope of the APRA. Issued April 30, 2015.

PR 15-17 Farinelli v. City of Pawtucket

The Complainants sought access to a Pawtucket Police Department internal affairs report. The City denied the request on the grounds that disclosure would constitute a clearly unwarranted invasion of personal privacy. After reviewing the internal affairs report in camera, using case law for guidance, and based on the unique facts and evidence presented, we concluded that disclosure of the internal affairs report in a redacted manner would not constitute a “clearly unwarranted invasion of personal privacy.” R.I. Gen. Laws § 38-2-2(4)(A)(I)(b). Accordingly, we found that the City of Pawtucket violated the APRA when it denied Complainants access to the internal affairs report in its entirety. VIOLATION FOUND. Issued May 14, 2015.

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PR 15-18 In Re: Albion Fire District This Department initiated an APRA investigation against the Fire District for failure to timely comply with R.I. Gen. Laws § 38-2-3.16. See R.I. Gen. Laws § 38-2-8(d). The evidence showed that despite repeated notice from this Department and despite the District’s assurances that the certifications were “forthcoming,” no certifications were received until March 3, after the Fire District received notice of the present investigation. Therefore, we concluded that the Fire District violated the APRA when it failed to timely comply with R.I. Gen. Laws § 38-2-3.16. Based on the totality of the circumstances, we had concerns that the District’s failure to timely comply with R.I. Gen. Laws § 38-2-3.16 was knowing and willful, or, alternatively, a reckless violation. The District shall have ten (10) business days to provide us with a supplemental explanation as to why its failure to timely comply with R.I. Gen. Laws § 38-2-3.16 should not be considered knowing and willful, or reckless, in light of its recognition of the APRA and this Department’s repeated requests to comply with its requirements. A supplemental finding will follow. VIOLATION FOUND. Issued May 18, 2015.

PR 15-19 Save the Bay v. Department of Environmental Management The Department of Environmental Management (“DEM”) did not violate the APRA when it withheld from disclosure a document prepared within a client/attorney relationship, and therefore, not deemed public pursuant to R.I. Gen. Laws § 38-2-2(4)(A)(I)(a). Based upon case law from the Rhode Island and United States Supreme Courts, we must conclude that the document requested, which was created by DEM’s legal counsel and sent to various DEM employees relative to their legal inquiries, is exempt from public disclosure. See R.I. Gen. Laws § 38-2-2(4)(i)(E). See also R.I. Gen. Laws § 38-2-2(4)(i)(A)(I)(exempting “all records relating to a client/attorney relationship”). Even the Complainant’s September 24, 2014 APRA complaint seems to acknowledge that “[t]he requested document [was] prepared with advice of counsel.” With respect to the allegation that the DEM’s APRA procedures were not on DEM’s website, the Complainant presented no evidence to dispute the assertion that DEM’s APRA procedures have been on its website since 2012. Issued May 18, 2015.

PR 15-20 Higgins v. Lonsdale Fire District

The Lonsdale Fire District violated the APRA when it failed to timely respond to an APRA request and failed to identify the specific reasons

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for the denial. The Fire District was directed to respond to the APRA requests in a manner consistent with the APRA and this Department’s finding, and was further instructed that it could not charge for the search, retrieval, or copying costs regarding the pending APRA requests. See R.I. Gen. Laws § 38-2-7(b).

VIOLATION FOUND. Issued May 21, 2015. PR 15-21 Banna v. Pawtucket Police Department

The Complainant alleged the Pawtucket Police Department violated the APRA when it improperly redacted portions of its response to her APRA request dated December 3, 2014. The Complainant had requested an incident report that described the circumstances involving her being bitten by a dog. The Complainant alleged the redacted portions, including a home address and other identifying information, are public records. Based on the evidence submitted, we concluded the redacted information sought would “reveal[] little or nothing about [the Police Department’s] own conduct.” See U.S. Dep’t of Justice v. Reporters Comm. for Freedom of the Press 489 U.S. at 749, 109 S.Ct. at 1481-82. Therefore, because there is little to no public interest in disclosing the home address, date of birth, license number and telephone number in this case, we conclude that the privacy interests outweigh the public interest and the redacted records are exempt.

Issued May 22, 2015. PR 15-22 Flaherty v. Rhode Island Department of Transportation

The Complainant alleged the Rhode Island Department of Transportation (“RIDOT”) violated the APRA when it denied her APRA request seeking documents regarding the “Draft Feasibility Study for Phase 4 Canonchet Farm Bike Path.” The RIDOT denied the request pursuant to R.I. Gen Laws § 38-2-2(4)(K) as a “draft.” Rhode Island General Laws § 38-2-2(4)(i)(K) exempts from public disclosure, “[p]reliminary drafts, notes, impressions, memoranda, working papers, and work products; provided, however, any document submitted at a public meeting of a public body shall be deemed public.” As no evidence was submitted that this draft was submitted at a public meeting, we found no violation.

Issued June 2, 2015. PR 15-23 Olawuyi v. Pawtucket Police Department

The Pawtucket Police Department did not violate the APRA when it withheld from disclosure an incident report that did not lead to an

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arrest. This Department has consistently held that where an arrest has not taken place, there is a presumption that incident reports are exempt from public disclosure. See R.I. Gen. Laws § 38-2-2(4)(D). While the foregoing principles may not apply in a situation where an incident report could be redacted to protect any privacy rights, in the present matter, this Department found that the privacy interests outweighed any interest the public may have in disclosure of such a report and that disclosure of the requested record could reasonably be expected to constitute an unwarranted invasion of personal privacy.

Issued June 8, 2015. PR 15-24 Access/Rhode Island v. West Warwick School Department

Access/Rhode Island hired a third-party named MuckRock from Boston, Massachusetts to conduct an Access to Public Records Act (“APRA”) survey regarding various state and local government APRA compliance within Rhode Island. After considering the facts and applicable case law, this Department concluded that since the APRA requests and inquiries were all made by MuckRock, and provided no indication that any APRA request or inquiry was made by or on behalf of Access/Rhode Island, Access/Rhode Island lacked legal standing to file the instant complaint or a lawsuit. See e.g. Fieger v. Federal Election Commission, 690 F.Supp.2d 644 (E.D. Mich. 2010). Nonetheless, after considering numerous factors, this Department concluded that it would review all the Access/Rhode Island APRA complaints pursuant to the Attorney General’s independent statutory authority to advance the public interest. See R.I. Gen. Laws § 38-2-8(d). In doing so, this Department determined that the School Department failed to submit a timely APRA certification pursuant to R.I. Gen. Laws § 38-2-3.16, although the evidence suggested that a School Department employee received APRA training in January 2014, yet failed to submit the appropriate form to this Department; and the School Department also violated the APRA when it failed to maintain and post APRA procedures on its website, although the evidence revealed that at the time of the MuckRock APRA requests, the School Department’s website was under construction. All of these violations were remedied prior to the filing of the December 2014 APRA complaint. The School Department also violated the APRA on three (3) occasions by failing to respond to MuckRock’s APRA requests in a timely manner and this Department directed the School Department to provide a supplemental response concerning these untimely responses

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to determine whether such a violation was willful and knowing, or reckless, which would subject the School Department to civil fines. VIOLATION FOUND. Issued June 12, 2015.

PR 15-25 Access/Rhode Island v. West Greenwich Police Department Access/Rhode Island charged that the Police Department violated the APRA on four (4) occasions when it failed to respond in a timely manner to MuckRock’s APRA requests. The evidence demonstrated that during the time in question, the Police Department was undergoing major communication upgrades and that its telecommunications system was interrupted. No evidence was produced that MuckRock’s four (4) APRA requests sent by facsimile were ever received by the Police Department, and no facsimile confirmation was ever produced by MuckRock or Access/Rhode Island to support the Police Department’s receipt of the facsimile APRA requests. Notwithstanding the lack of evidence supporting the receipt of a facsimile APRA request, because the Police Department did not rebut MuckRock’s assertion that it had subsequently sent a follow-up e-mail APRA request – after not having received an acknowledgment by facsimile – this Department determined that the failure to timely respond to this follow-up e-mail APRA request violated the APRA. VIOLATION FOUND. Issued June 12, 2015.

PR 15-26 Access/Rhode Island v. New Shoreham Police Department Access/Rhode Island contended that the Police Department violated the APRA on six (6) occasions, when it failed to submit an APRA certification form to this Department pursuant to R.I. Gen. Laws § 38-2-3.16, when it failed to maintain/post APRA procedures on its website, and when it failed to respond timely to four (4) separate APRA requests. The evidence revealed that the Town of New Shoreham promulgated an APRA procedure and that this APRA procedure was posted on the Town’s website “since April 1, 2014.” The Town’s APRA procedure required all APRA requests made to any Town department, including the Police Department, be made to the Town Clerk. Here, the four (4) APRA requests that Access/Rhode Island claimed where responded to in an untimely manner were all made after April 1, 2014, and were all made to persons or entities other than the Town Clerk, typically, the Police Chief. Because the APRA mandates that public bodies provide notice to the public and post on its website the manner in which APRA requests should be made, see

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R.I. Gen. Laws § 38-2-3(d), because the Town complied with this requirement for all post-April 1, 2014 APRA requests, and because MuckRock failed to follow the posted Town APRA procedures, we found that the Police Department did not violate the APRA when it failed to respond in a timely manner to MuckRock’s four (4) post April 1, 2014 APRA requests, none of which were not made in accordance with Town’s APRA procedures. See Rosenfield v. North Kingstown School Department, PR 14-02 (“This Department has previously determined that an APRA request must first comport with a public body’s APRA policy before we can decide whether a violation has occurred”). Moreover, since R.I. Gen. Laws § 38-2-3.16 mandates that a public employee receive APRA training when that employee has “the authority to grant or deny persons or entities access to records under this [APRA],” and since the evidence demonstrated that the Town Clerk and not the Police Chief had this authority according to the Town’s APRA procedures, we also found that the Police Department did not violate the APRA when the Police Department did not submit an APRA certification form to this Department. Lastly, we found that because the Town promulgated and posted APRA procedures, and these APRA procedures expressly included all town departments including the Police Department, the Police Department did not violate the APRA when it did not independently promulgate and post APRA procedures. Issued June 12, 2015.

PR 15-27 Access/Rhode Island v. Department of Corrections Access/Rhode Island contended that the Department of Corrections violated the APRA when it failed to provide APRA certification forms to this Department evidencing APRA training pursuant to R.I. Gen. Laws § 38-2-3.16 and when it failed to respond in a timely manner to two (2) MuckRock APRA requests. The evidence demonstrated that although two (2) DOC attorneys had attended and received appropriate APRA training in August 2013, which would have qualified for calendar year 2014 in accordance with R.I. Gen. Laws § 38-2-3.16, no evidence was submitted that the certification forms had been submitted to this Department, and accordingly, this omission violated the APRA. With respect to the allegations that the DOC had responded in an untimely manner to two (2) MuckRock APRA requests, we found that one of these instances violated the APRA. In particular, MuckRock had made an APRA request to the DOC e-mail account, but unbeknownst to the employee who monitored the DOC e-mail account, information technology changes had been made and she was no longer permitted access. This issue was corrected. With

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respect to the second untimely response allegation, Access/Rhode Island alleged that the DOC responded one (1) day late to MuckRock’s APRA request seeking “[c]ontracts for the ten (10) employees with the highest salaries,” which was made on April 29, 2014. The evidence revealed that on May 7, 2014, within the ten (10) business day statutory time period, DOC responded that its staff employees were not hired under a contract agreement, at which point MuckRock responded by indicating that “[i]f no staff of Department of Corrections is under contract, then you can consider this request closed.” Although MuckRock sought further confirmation, as of May 8, 2014, the DOC had related that it did not maintain staff contracts and MuckRock had indicated that if no DOC staff were under contract, the APRA request could be considered “closed.” All of these events occurred within ten (10) business days. VIOLATION FOUND. Issued June 12, 2015.

PR 15-28 Access/Rhode Island v. Town of Warren Access/Rhode Island alleged that the Town violated the APRA when it failed to provide APRA certification forms to this Department evidencing APRA training pursuant to R.I. Gen. Laws § 38-2-3.16 and when it failed to promulgate and post APRA procedures to its website. These violations have since been remedied. The Town provided no substantive response to the underlying allegations, and therefore, we found the allegations meritorious. Because the Town did not provide a substantive response or explanation concerning the violations, we deemed it appropriate to direct the Town to provide a supplemental response addressing the underlying violations so that this Department could determine whether the violations were willful and knowing, or reckless, which would subject the Town to civil fines. VIOLATION FOUND. Issued June 12, 2015.

PR 15-29 Access/Rhode Island v. Charlestown Police Department Access/Rhode Island alleged that the Police Department violated the APRA when it failed to provide APRA certification forms to this Department evidencing APRA training pursuant to R.I. Gen. Laws § 38-2-3.16 and when it failed to promulgate and post APRA procedures to its website. These violations have since been remedied, and accordingly, injunctive relief would be ineffective. Additionally, based upon the totality of the evidence and circumstances, we found

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insufficient evidence to demonstrate a willful and knowing, or reckless, violation. VIOLATION FOUND. Issued June 12, 2015.

PR 15-30 Access/Rhode Island v. Newport School Department

Access/Rhode Island alleged that the School Department violated the APRA when it failed to provide APRA certification forms to this Department evidencing APRA training pursuant to R.I. Gen. Laws § 38-2-3.16, when it failed to promulgate and post APRA procedures to its website, and when it failed to respond timely to a MuckRock APRA request. The evidence demonstrated that a School Department employee had received APRA training in January 2014, yet had not submitted an APRA certification form to the Department of Attorney General, and the evidence also revealed that the School Department failed to promulgate and post its APRA procedures to its website. These violations have since been remedied. With respect to Access/Rhode Island’s allegation that the School Department responded to MuckRock’s APRA request in an untimely manner, the evidence demonstrated that the School Department timely asserted an extension of time pursuant to R.I. Gen. Laws §§ 38-2-3(e) and 38-2-7(b), and subsequently timely denied access to the requested records since the School Department did not maintain the requested records. R.I. Gen. Laws § 38-2-3(h). VIOLATION FOUND. Issued June 12, 2015.

PR 15-31 Access/Rhode Island v. East Greenwich School Department

Access/Rhode Island alleged that the School Department violated the APRA when it failed to provide APRA certification forms to this Department evidencing APRA training pursuant to R.I. Gen. Laws § 38-2-3.16, when it failed to post its promulgated APRA procedures on its website, and when it failed to respond in a timely manner to two (2) MuckRock APRA requests. The School Department acknowledged that it failed to timely provide APRA certification forms to this Department and that it failed to appropriately post its promulgated APRA procedures to its website. Both violations have since been remedied. Access/Rhode Island further alleged that the School Department failed to respond in a timely manner to MuckRock’s APRA request seeking written procedures for access to an agency’s public records, but the evidence established that the School Department did provide a timely reply to this request and even Access/Rhode Island’s rebuttal acknowledged that “[t]he [School]

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Department did provide a reply in a timely manner.” The School Department did not timely respond to MuckRock’s June 27, 2014 APRA request seeking documents relating to teacher layoffs – despite not having any responsive documents. The School Department’s failure to timely respond to this request violated the APRA and this Department directed the School Department to provide a supplemental response concerning whether such a failure should be considered willful and knowing, or reckless, which would subject the School Department to civil fines. VIOLATION FOUND. Issued June 12, 2015.

PR 15-32 Access/Rhode Island v. Cumberland Police Department

Access/Rhode Island sent a staff member from a third party (MuckRock) to the Cumberland Police Department to request in-person records deemed public pursuant to R.I. Gen. Laws § 38-2-3.2, which provides that certain delineated information concerning an arrested adult “shall be made available within forty-eight (48) hours after receipt of a request unless a request is made on a weekend or holiday, in which event the information shall be made available within seventy-two (72) hours[.]” The foregoing time constraints apply only to “arrests made within five (5) days prior to the request.” R.I. Gen. Laws § 38-2-3.2(b). Here, the Cumberland Police Department timely provided the required information for “arrests made within five (5) days prior to the request” and timely provided the additional adult arrest logs concerning arrests made more than five (5) days after the request. Issued June 12, 2015.

PR 15-33 Access/Rhode Island v. Providence Police Department

In its complaint, Access/Rhode Island alleged that the Police Department violated the APRA when it responded to a MuckRock APRA request in an untimely manner. Upon receiving the Police Department’s response to Access/Rhode Island’s complaint and supporting evidence, Access/Rhode Island requested that it be allowed to “withdraw” the APRA allegation against the Police Department and this Department permitted its withdrawal. Issued June 12, 2015.

PR 15-34 Access/Rhode Island v. Town of Scituate

Access/Rhode Island alleged that the Town violated the APRA when it failed to provide APRA certification forms to this Department evidencing APRA training pursuant to R.I. Gen. Laws § 38-2-3.16 and

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when it failed to promulgate and post APRA procedures on its website. The evidence suggested that the Town Clerk may have had prior APRA training, yet failed to submit an APRA training certification form to this Department. Moreover, although the evidence demonstrated that the Town had promulgated an APRA form and procedure, and that the Town’s APRA form was posted to its website, the Town acknowledged that its APRA procedures were not posted to its website. As best as could be determined, this omission appeared to be the result of an information technology error since the APRA form had been posted, but not the APRA procedures. These violations were remedied. VIOLATION FOUND. Issued June 12, 2015.

PR 15-35 Access/Rhode Island v. Office of Auditor General In this complaint, Access/Rhode Island alleged that the Office of Auditor General violated the APRA when it failed to provide APRA certification forms to this Department evidencing APRA training pursuant to R.I. Gen. Laws § 38-2-3.16, failed to timely respond to a MuckRock APRA request, and failed to promulgate and post on its website APRA procedures. The Office of Auditor General acknowledged the instant violations and has since remedied its violations by submitting its APRA certification, promulgating and posting its APRA procedures, and providing MuckRock the requested documents. Nonetheless, based upon the Office’s failure to timely respond to MuckRock’s APRA request, this Department directed the Office of Auditor General to provide a supplemental response presenting evidence concerning whether its failure to timely respond should be considered willful and knowing, or reckless, and thus subject the Office of Auditor General to civil fines. VIOLATION FOUND. Issued June 12, 2015.

PR 15-36 Access/Rhode Island v. Department of Labor and Training Access/Rhode Island alleged that the Department of Labor and Training (“DLT”) violated the APRA when it failed to provide APRA certification forms to this Department evidencing APRA training pursuant to R.I. Gen. Laws § 38-2-3.16, and when it failed to respond in a timely manner to two (2) MuckRock APRA requests. Although the evidence demonstrated that the designated DLT public records officer received APRA training in 2013, which would have been applicable for calendar year 2014, no evidence was submitted that an APRA certification form had been submitted for this training. Accordingly,

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this violated the APRA. Additionally, the evidence indicated that the DLT failed to respond in a timely manner to MuckRock’s APRA request by one (1) day. Based upon the evidence presented, it appears this omission was the result of, as Access/Rhode Island phrased it, an “imprecise email sent by” another agency that DLT believed was responding on its behalf. Regarding Access/Rhode Island’s allegation that a second APRA request had not been timely responded to by DLT, we found no violation. The evidence indicated that MuckRock had sent this APRA request via facsimile and the evidence presented by DLT established that it had not received this facsimile APRA request. Access/Rhode Island attempted to rebut the DLT’s position that it never received this APRA request by presenting a facsimile confirmation sheet, but this confirmation sheet pertained to MuckRock’s first APRA request (made on April 29, 2014) and did not pertain to MuckRock’s second APRA request, which was at issue (allegedly made on June 9, 2014). Because neither Access/Rhode Island nor MuckRock was able to present evidence to rebut the DLT’s position, we found that the DLT received this second APRA request on June 24, 2014 and timely responded to this second APRA request on July 3, 2014. VIOLATION FOUND. Issued June 12, 2015.

PR 15-37 Access/Rhode Island v. Warren Police Department Access/Rhode Island alleged that the Police Department violated the APRA when it maintained APRA procedures, but when it failed to post these maintained APRA procedures on its website. Additionally, Access/Rhode Island alleged that the Police Department violated the APRA when it failed to timely respond to four (4) APRA requests made by MuckRock. The Police Department did not contest that it failed to post its promulgated/maintained APRA procedures on its website, and accordingly, this allegation violated the APRA. With respect to the allegations that the Police Department failed to timely respond to MuckRock’s APRA requests, on two (2) of these occasions, the Police Department violated the APRA. In both situations, MuckRock sent by facsimile APRA requests to a machine that was not regularly monitored by the Police Department. In the other two (2) situations, we found no violations. In one situation, the Police Department required pre-payment from MuckRock for the cost of the APRA request. In such a situation, the time for a public body to respond to the APRA request is tolled, pending pre-payment. See R.I. Gen. Laws § 38-2-7(b)(“production of records shall not be deemed untimely if the public body is awaiting receipt of payment for costs

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properly charged under section 38-2-4”). Because the time from MuckRock’s APRA request to the Police Department providing responsive documents totaled ten (10) business days, exclusive of the time awaiting payment, the Police Department’s response was timely. Additionally, even though R.I. Gen. Laws § 38-2-3.2 provides that certain delineated adult arrest log information be provided within “forty-eight (48) hours after receipt of a request unless a request is made on a weekend or holiday, in which event the information shall be made available within seventy-two (72) hours,” the evidence established that MuckRock’s APRA request expressly requested such information be provided by the Police Department within “10 business days,” thus waiving the time frame set forth in R.I. Gen. Laws § 38-2-3.2. See Gallucci v. Brindamour, 477 A.2d 617, 618 (R.I. 1984)(“Generally, a party or parties for whose benefit a right is provided by constitution, by statute, or by principles of common law may waive such right, regardless of the plain and unambiguous terms by which such right is expressed.”). Accordingly, the Police Department’s response was also timely with respect to this request. Based upon the prior two (2) violations for failing to respond in a timely manner, this Department directed the Police Department to provide a supplemental response concerning whether such a violation should be considered willful and knowing, or reckless, which would subject the Police Department to a civil fine. VIOLATION FOUND. Issued June 12, 2015.

PR 15-38 Access/Rhode Island v. Rhode Island State Police

In this case, Access/Rhode Island alleged that the State Police failed to respond in a timely manner to two (2) MuckRock APRA requests. The first sought adult arrest log records delineated within R.I. Gen. Laws § 38-2-3.2, which in pertinent part, requires that such records “shall be made available within forty-eight (48) hours after receipt of a request unless a request is made on a weekend or holiday, in which event the information shall be made available within seventy-two (72) hours.” Construing the evidence in the light least-favorable to the State Police, the evidence demonstrated that MuckRock made an in-person APRA request on May 19, 2014 and the State Police provided a mailed response (at MuckRock’s request) on May 21, 2014. The State Police violated the APRA when it failed to timely respond to MuckRock’s APRA request for other arrest log information. In particular, the evidence established that after receiving MuckRock’s APRA request on June 9, 2014, the State Police responded on June 20, 2014 by requiring prepayment. This period of time – nine (9) business days – was a

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timely response and tolled the time for the State Police to respond pending pre-payment. See R.I. Gen. Laws § 38-2-7(b)(“the production of records shall not be deemed untimely if the public body is awaiting receipt of payment for costs properly charged under § 38-2-4”). On June 30, 2014, MuckRock provided pre-payment, and the time for the State Police to timely respond within ten (10) business days – nine (9) of which had already expired – once again began to expire. While the State Police argued that the ten (10) business days started anew upon MuckRock’s June 30, 2014 pre-payment, no authority supported this position and instead, the time that had been tolled effective June 20, 2014 once again began to run effective June 30, 2014. Accordingly, the ten (10) business day period expired one (1) day after MuckRock provided its payment. The State Police did provide the requested documents. VIOLATION FOUND. Issued June 12, 2015.

PR 15-39 Shapiro v. Town of Warren

This Department found that the Town of Warren did not violate the APRA when it failed to respond to an APRA request within ten (10) business days. The Town had a properly promulgated and posted APRA procedure requiring all requests to be made to the Town Clerk. Since this APRA request was made to the Town Manager, and not the Town Clerk, the failure to timely respond did not violate the APRA. Issued June 18, 2015.

ACCESS TO PUBLIC RECORDS ACT

ADVISORY OPINIONS – 2015

ADV PR 15-01 In Re Computer Aided Dispatch System The Department of Public Safety requested an advisory opinion concerning whether its computer aided dispatch system report was a public record. Because of the various different types of information contained within the report, this Department advised that whether any particular entry is or is not a public record can only be determined on a case-by-case basis after review. Issued February 17, 2015.

ADV PR 15-02 In Re Department Business Regulation

The Department of Business Regulation (“DBR”) sought this Department’s advice concerning whether a video tape submitted at a regulatory enforcement hearing being conducted

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pursuant to the Administrative Procedures Act is exempt from disclosure under the APRA. It is this Department’s practice/policy to issue Advisory Opinions only on pending matters, and not actions that have been already taken. See Chrabaszcz v. Johnston School Department, PR 04-15. In this case, we were advised that the DBR has already denied the APRA requests for copies of the video tape. Considering our practice/policy and the fact that the DBR has already denied access to the record requested, it is far more appropriate that if this matter is to come before this Department that it take the form of a complaint where both sides can present evidence and argument to support their respective positions, rather than through a request for an Advisory Opinion that contains only the DBR’s conclusion that the videotape at issue is not a public record. For these reasons, we respectfully decline to issue an Advisory Opinion. Issued February 27, 2015.

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CHAPTER 2

ACCESS TO PUBLIC RECORDS 38-2-1. Purpose. — The public’s right to access to public records and the individual’s right to dignity and privacy are both recognized to be principles of the utmost importance in a free society. The purpose of this chapter is to facilitate public access to public records. It is also the intent of this chapter to protect from disclosure information about particular individuals maintained in the files of public bodies when disclosure would constitute an unwarranted invasion of personal privacy.

38-2-2. Definitions. — As used in this chapter: (1) “Agency” or “public body” means any executive, legislative, judicial,

regulatory, or administrative body of the state, or any political subdivision thereof; including, but not limited to, any department, division, agency, commission, board, office, bureau, authority, any school, fire, or water district, or other agency of Rhode Island state or local government which exercises governmental functions, any authority as defined in section 42-35-1(b), or any other public or private agency, person, partnership, corporation, or business entity acting on behalf of and/or in place of any public agency.

(2) “Chief administrative officer” means the highest authority of the public body.

(3) “Public business” means any matter over which the public body has supervision, control, jurisdiction, or advisory power.

(4) “Public record” or “public records” shall mean all documents, papers, letters, maps, books, tapes, photographs, films, sound recordings, magnetic or other tapes, electronic data processing records, computer stored data (including electronic mail messages, except specifically for any electronic mail messages of or to elected officials with or relating to those they represent and correspondence of or to elected officials in their official capacities) or other material regardless of physical form or characteristics made or received pursuant to law or ordinance or in connection with the transaction of official business by any agency. For the purposes of this chapter, the following records shall not be deemed public:

(A) (I) (a) All records relating to a client/attorney relationship and to a doctor/patient relationship, including all medical information relating to an individual in any files;

(b) Personnel and other personal individually-identifiable records otherwise deemed confidential by federal or state law or regulation, or the disclosure of which would constitute a clearly unwarranted invasion of personal privacy pursuant to 5 U.S.C. 552 et. seq.; provided, however, with respect to employees, and employees of contractors and subcontractors working on public works projects which are required to be listed as certified payrolls, the name,

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gross salary, salary range, total cost of paid fringe benefits, gross amount received in overtime, and any other remuneration in addition to salary, job title, job description, dates of employment and positions held with the state municipality, or public works contractor or subcontractor on public works projects, employment contract, work location, and/or project, business telephone number, the city or town of residence, and date of termination shall be public. For the purposes of this section “remuneration” shall include any payments received by an employee as a result of termination, or otherwise leaving employment, including, but not limited to, payments for accrued sick and/or vacation time, severance pay, or compensation paid pursuant to a contract buy-out provision.

(II) Notwithstanding the provisions of this section, or any other provision of the general laws to the contrary, the pension records of all persons who are either current or retired members of any public retirement systems as well as all persons who become members of those retirement systems after June 17, 1991 shall be open for public inspection. “Pension records” as used in this section shall include all records containing information concerning pension and retirement benefits of current and retired members of the retirement systems and future members of said systems, including all records concerning retirement credits purchased and the ability of any member of the retirement system to purchase retirement credits, but excluding all information regarding the medical condition of any person and all information identifying the member’s designated beneficiary or beneficiaries unless and until the member’s designated beneficiary or beneficiaries have received or are receiving pension and/or retirement benefits through the retirement system.

(B) Trade secrets and commercial or financial information obtained from a person, firm, or corporation which is of a privileged or confidential nature.

(C) Child custody and adoption records, records of illegitimate births, and records of juvenile proceedings before the family court.

(D) All records maintained by law enforcement agencies for criminal law enforcement and all records relating to the detection and investigation of crime, including those maintained on any individual or compiled in the course of a criminal investigation by any law enforcement agency. Provided, however, such records shall not be deemed public only to the extent that the disclosure of the records or information (a) could reasonably be expected to interfere with investigations of criminal activity or with enforcement proceedings, (b) would deprive a person of a right to a fair trial or an impartial adjudication, (c) could reasonably be expected to constitute an unwarranted invasion of personal privacy, (d) could reasonably be expected to disclose the identity of a confidential source, including a state, local, or foreign agency or authority, or any private institution which furnished information on a confidential basis, or the information furnished by a confidential source, (e) would disclose techniques and procedures for law enforcement investigations or prosecutions, or would

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disclose guidelines for law enforcement investigations or prosecutions or (f) could reasonably be expected to endanger the life or physical safety of any individual. Records relating to management and direction of a law enforcement agency and records or reports reflecting the initial arrest of an adult and the charge or charges brought against an adult shall be public.

(E) Any records which would not be available by law or rule of court to an opposing party in litigation.

(F) Scientific and technological secrets and the security plans of military and law enforcement agencies, the disclosure of which would endanger the public welfare and security.

(G) Any records which disclose the identity of the contributor of a bona fide and lawful charitable contribution to the public body whenever public anonymity has been requested of the public body with respect to the contribution by the contributor.

(H) Reports and statements of strategy or negotiation involving labor negotiations or collective bargaining.

(I) Reports and statements of strategy or negotiation with respect to the investment or borrowing of public funds, until such time as those transactions are entered into.

(J) Any minutes of a meeting of a public body which are not required to be disclosed pursuant to chapter 46 of title 42.

(K) Preliminary drafts, notes, impressions, memoranda, working papers, and work products; provided, however, any documents submitted at a public meeting of a public body shall be deemed public.

(L) Test questions, scoring keys, and other examination data used to administer a licensing examination, examination for employment or promotion, or academic examinations; provided, however, that a person shall have the right to review the results of his or her examination.

(M) Correspondence of or to elected officials with or relating to those they represent and correspondence of or to elected officials in their official capacities.

(N) The contents of real estate appraisals, engineering, or feasibility estimates and evaluations made for or by an agency relative to the acquisition of property or to prospective public supply and construction contracts, until such time as all of the property has been acquired or all proceedings or transactions have been terminated or abandoned; provided the law of eminent domain shall not be affected by this provision.

(O) All tax returns. (P) All investigatory records of public bodies, with the exception of law

enforcement agencies, pertaining to possible violations of statute, rule, or regulation other than records of final actions taken provided that all records prior to formal notification of violations or noncompliance shall not be deemed to be public.

(Q) Records of individual test scores on professional certification and

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licensing examinations; provided, however, that a person shall have the right to review the results of his or her examination.

(R) Requests for advisory opinions until such time as the public body issues its opinion.

(S) Records, reports, opinions, information, and statements required to be kept confidential by federal law or regulation or state law, or rule of court.

(T) Judicial bodies are included in the definition only in respect to their administrative function provided that records kept pursuant to the provisions of chapter 16 of title 8 are exempt from the operation of this chapter.

(U) Library records which by themselves or when examined with other public records, would reveal the identity of the library user requesting, checking out, or using any library materials.

(V) Printouts from TELE -TEXT devices used by people who are deaf or hard of hearing or speech impaired.

(W) All records received by the insurance division of the department of business regulation from other states, either directly or through the National Association of Insurance Commissioners, if those records are accorded confidential treatment in that state. Nothing contained in this title or any other provision of law shall prevent or be construed as prohibiting the commissioner of insurance from disclosing otherwise confidential information to the insurance department of this or any other state or country; at any time, so long as the agency or office receiving the records agrees in writing to hold it confidential in a manner consistent with the laws of this state.

(X) Credit card account numbers in the possession of state or local government are confidential and shall not be deemed public records.

(Y) Any documentary material, answers to written interrogatories, or oral testimony provided under any subpoena issued under Rhode Island General Law § 9-1.1-6.

(Z) Any Individually identifiable evaluations of public school teachers made pursuant to state or federal law or regulation.

(AA) All documents prepared by school districts intended to be used by school districts in protecting the safety of their students from potential and actual threats.

38-2-3. Right to inspect and copy records — Duty to maintain minutes of

meetings — Procedures for access. — (a) Except as provided in § 38-2-2(4), all records maintained or kept on file

by any public body, whether or not those records are required by any law or by any rule or regulation, shall be public records and every person or entity shall have the right to inspect and/or copy those records at such reasonable time as may be determined by the custodian thereof.

(b) Any reasonably segregable portion of a public record excluded by subdivision 38-2-2(4) shall be available for public inspection after the deletion of

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the information which is the basis of the exclusion. If an entire document or record is deemed non-public, the public body shall state in writing that no portion of the document or record contains reasonable segregable information that is releasable.

(c) Each public body shall make, keep, and maintain written or recorded minutes of all meetings.

(d) Each public body shall establish written procedures regarding access to public records but shall not require written requests for public information available pursuant to R.I.G.L. section 42-35-2 or for other documents prepared for or readily available to the public.

These procedures must include, but need not be limited to, the identification of a designated public records officer or unit, how to make a public records request, and where a public record request should be made, and a copy of these procedures shall be posted on the public body’s website if such a website is maintained and be made otherwise readily available to the public. The unavailability of a designated public records officer shall not be deemed good cause for failure to timely comply with a request to inspect and/or copy public records pursuant to subsection (e). A written request for public records need not be made on a form established by a public body if the request is otherwise readily identifiable as a request for public records.

(e) A public body receiving a request shall permit the inspection or copying within ten (10) business days after receiving a request. If the inspection or copying is not permitted within ten (10) business days, the public body shall forthwith explain in writing the need for additional time to comply with the request. Any such explanation must be particularized to the specific request made. In such cases the public body may have up to an additional twenty (20) business days to comply with the request if it can demonstrate that the voluminous nature of the request, the number of requests for records pending, or the difficulty in searching for and retrieving or copying the requested records, is such that additional time is necessary to avoid imposing an undue burden on the public body.

(f) If a public record is in active use or in storage and, therefore, not available at the time a person or entity requests access, the custodian shall so inform the person or entity and make an appointment for the person or entity to examine such records as expeditiously as they may be made available.

(g) Any person or entity requesting copies of public records may elect to obtain them in any and all media in which the public agency is capable of providing them. Any public body which maintains its records in a computer storage system shall provide any data properly identified in a printout or other reasonable format, as requested.

(h) Nothing in this section shall be construed as requiring a public body to reorganize, consolidate, or compile data not maintained by the public body in the form requested at the time the request to inspect the public records was made

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except to the extent that such records are in an electronic format and the public body would not be unduly burdened in providing such data.

(i) Nothing in this section is intended to affect the public record status of information merely because it is stored in a computer.

(j) No public records shall be withheld based on the purpose for which the records are sought, nor shall a public body require, as a condition of fulfilling a public records request, that a person or entity provide a reason for the request or provide personally identifiable information about him/herself.

(k) At the election of the person or entity requesting the public records, the public body shall provide copies of the public records electronically, by facsimile, or by mail in accordance with the requesting person or entity’s choice, unless complying with that preference would be unduly burdensome due to the volume of records requested or the costs that would be incurred. The person requesting delivery shall be responsible for the actual cost of delivery, if any.

38-2-3.1. Records required.— All records required to be maintained

pursuant to this chapter shall not be replaced or supplemented with the product of a “real-time translation reporter.”

38-2-3.2. Arrest logs. – (a) Notwithstanding the provisions of subsection 38-2-3(e), the following information reflecting an initial arrest of an adult and charge or charges shall be made available within forty-eight (48) hours after receipt of a request unless a request is made on a weekend or holiday, in which event the information shall be made available within seventy-two (72) hours, to the extent such information is known by the public body:

(1) Full name of the arrested adult; (2) Home address of the arrested adult, unless doing so would identify a crime victim; (3) Year of birth of the arrested adult; (4) Charge or charges; (5) Date of the arrest; (6) Time of the arrest; (7) Gender of the arrested adult; (8) Race of the arrested adult; and (9) Name of the arresting officer unless doing so would identify an undercover officer. (b) The provisions of this section shall apply to arrests made within five (5) days prior to the request. 38-2-3.16. Compliance by agencies and public bodies. – Not later than

January 1, 2013, and annually thereafter, the chief administrator of each agency and each public body shall state in writing to the attorney general that all officers and employees who have the authority to grant or deny persons or entities access

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to records under this chapter have been provided orientation and training regarding this chapter. The attorney general may, in accordance with the provisions of chapter 35 of title 42, promulgate rules and regulations necessary to implement the requirements of this section.

38-2-4. Cost. — (a) Subject to the provisions of section 38-2-3, a public body must allow copies to be made or provide copies of public records. The cost per copied page of written documents provided to the public shall not exceed fifteen cents ($.15) per page for documents copyable on common business or legal size paper. A public body may not charge more than the reasonable actual cost for providing electronic records or retrieving records from storage where the public body is assessed a retrieval fee.

(b) A reasonable charge may be made for the search or retrieval of documents. Hourly costs for a search and retrieval shall not exceed fifteen dollars ($15.00) per hour and no costs shall be charged for the first hour of a search or retrieval. For the purposes of this subsection, multiple requests from any person or entity to the same public body within a thirty (30) day time period shall be considered one request.

(c) Copies of documents shall be provided and the search and retrieval of documents accomplished within a reasonable time after a request. A public body upon request, shall provide an estimate of the costs of a request for documents prior to providing copies.

(d) Upon request, the public body shall provide a detailed itemization of the costs charged for search and retrieval.

(e) A court may reduce or waive the fees for costs charged for search or retrieval if it determines that the information requested is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government and is not primarily in the commercial interest of the requester. 38-2-5. Effect of chapter on broader agency publication — Existing rights — Judicial records and proceedings. — Nothing in this chapter shall be:

(1) Construed as preventing any public body from opening its records concerning the administration of the body to public inspection;

(2) Construed as limiting the right of access as it existed prior to July 1, 1979, of an individual who is the subject of a record to the information contained herein; or

(3) Deemed in any manner to affect the status of judicial records as they existed prior to July 1, 1979, nor to affect the rights of litigants in either criminal or civil proceedings, including parties to administrative proceedings, under the laws of discovery of this state.

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38-2-7. Denial of access. — (a) Any denial of the right to inspect or copy records, in whole or in part provided for under this chapter shall be made to the person or entity requesting the right in writing giving the specific reasons for the denial within ten (10) business days of the request and indicating the procedures for appealing the denial. Except for good cause shown, any reason not specifically set forth in the denial shall be deemed waived by the public body.

(b) Failure to comply with a request to inspect or copy the public record within the ten (10) business day period shall be deemed to be a denial. Except that for good cause, this limit may be extended in accordance with the provisions of subsection 38-2-3(e) of this chapter. All copying and search and retrieval fees shall be waived if a public body fails to produce requested records in a timely manner; provided, however, that the production of records shall not be deemed untimely if the public body is awaiting receipt of payment for costs properly charged under section 38-2-4.

(c) A public body that receives a request to inspect or copy records that do not exist or are not within its custody or control shall, in responding to the request in accordance with this chapter, state that it does not have or maintain the requested records.

38-2-8. Administrative appeals. — (a) Any person or entity denied the

right to inspect a record of a public body may petition the chief administrative officer of that public body for a review of the determinations made by his or her subordinate. The chief administrative officer shall make a final determination whether or not to allow public inspection within ten (10) business days after the submission of the review petition.

(b) If the custodian of the records or the chief administrative officer determines that the record is not subject to public inspection, the person or entity seeking disclosure may file a complaint with the attorney general. The attorney general shall investigate the complaint and if the attorney general shall determine that the allegations of the complaint are meritorious, he or she may institute proceedings for injunctive or declaratory relief on behalf of the complainant in the superior court of the county where the record is maintained. Nothing within this section shall prohibit any individual or entity from retaining private counsel for the purpose of instituting proceedings for injunctive or declaratory relief in the superior court of the county where the record is maintained.

(c) The attorney general shall consider all complaints filed under this chapter to have also been filed pursuant to the provisions of § 42-46-8(a), if applicable.

(d) Nothing within this section shall prohibit the attorney general from initiating a complaint on behalf of the public interest.

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38-2-9. Jurisdiction of superior court. — (a) Jurisdiction to hear and determine civil actions brought under this

chapter is hereby vested in the superior court. (b) The court may examine any record which is the subject of a suit in

camera to determine whether the record or any part thereof may be withheld from public inspection under the terms of this chapter.

(c) Actions brought under this chapter may be advanced on the calendar upon motion of any party, or sua sponte by the court made in accordance with the rules of civil procedure of the superior court.

(d) The court shall impose a civil fine not exceeding two thousand dollars ($2,000) against a public body or official found to have committed a knowing and willful violation of this chapter, and a civil fine not to exceed one thousand dollars ($1,000) against a public body found to have recklessly violated this chapter and shall award reasonable attorney fees and costs to the prevailing plaintiff. The court shall further order a public body found to have wrongfully denied access to public records to provide the records at no cost to the prevailing party; provided, further, that in the event that the court, having found in favor of the defendant, finds further that the plaintiff’s case lacked a grounding in fact or in existing law or in good faith argument for the extension, modification, or reversal of existing law, the court may award attorneys fees and costs to the prevailing defendant. A judgment in the plaintiff’s favor shall not be a prerequisite to obtaining an award of attorneys’ fees and/or costs if the court determines that the defendant’s case lacked grounding in fact or in existing law or a good faith argument for extension, modification or reversal of existing law.

38-2-10. Burden of proof. — In all actions brought under this chapter, the

burden shall be on the public body to demonstrate that the record in dispute can be properly withheld from public inspection under the terms of this chapter.

38-2-11. Right supplemental. — The right of the public to inspect public

records created by this chapter shall be in addition to any other right to inspect records maintained by public bodies.

38-2-12. Severability. — If any provision of this chapter is held unconstitutional, the decision shall not affect the validity of the remainder of this chapter. If the application of this chapter to a particular record is held invalid, the decision shall not affect other applications of this chapter.

38-2-13. Records access continuing. — All records initially deemed to be

public records which any person may inspect and/or copy under the provisions of this chapter, shall continue to be so deemed whether or not subsequent court action or investigations are held pertaining to the matters contained in the records.

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38-2-14. Information relating to settlement of legal claims. — Settlement

agreements of any legal claims against a governmental entity shall be deemed public records.

38-2-15. Reported violations. — Every year the attorney general shall

prepare a report summarizing all the complaints received pursuant to this chapter, which shall be submitted to the legislature and which shall include information as to how many complaints were found to be meritorious and the action taken by the attorney general in response to those complaints.

SECTION II

OPEN MEETINGS ACT

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OPEN MEETINGS ACT FINDINGS – 2015 OM 15-01 Alix v. Harrisville Fire District

The Complainant alleged that the Harrisville Fire District (“Fire District”) violated the OMA when its Fire Subcommittee held a meeting in March 2014 without notice to the public. In order for the OMA to apply, a “quorum” of a “public body” must convene for a “meeting” as these terms are defined by the OMA. Because the evidence is undisputed that two (2) members of the Subcommittee gathered, this Department needed to determine whether the Subcommittee is composed of three (3) members, or whether the Subcommittee is composed of four (4) members, which would include the ex officio member. We saw no reason, nor were we presented with any legal argument, why an ex officio member of a public body would not be counted towards a quorum. Since two (2) of the four (4) Subcommittee members were present for this unnoticed March 2014 meeting, a “quorum” was not present and the OMA was not implicated. As such, we found no violation. Issued January 27, 2015.

OM 15-02 Common Cause v. Board of Elections Insufficient evidence was presented that the Complainant was aggrieved by the allegedly deficient public notice. Accordingly, pursuant to Graziano v. Rhode Island Lottery Commission, 810 A.2d 215 (R.I. 2002), the Complainant lacked standing to bring this complaint. Issued February 27, 2015.

OM 15-03 Novak v. Western Coventry Fire District

The Complainant alleged the Western Coventry Fire District (“Fire District”) violated the OMA when it failed to timely post its meeting minutes on the Secretary of State‟s website for eleven (11) of its meetings. See R.I. Gen. Laws § 42-46-7(b)(2). On June 11, 2014, this Department issued Novak v. Western Coventry Fire District, OM 14-24, wherein this Department found that the Fire District violated the OMA by failing to timely post its unofficial minutes on the Secretary of State‟s website for seven (7) meetings. Notwithstanding this actual notice, previously, by letter dated November 4, 2013, the Attorney General advised all Fire Districts that the OMA had been amended, effective July 2013, to include R.I. Gen. Laws § 42-46-7(b)(2)‟s posting requirement – the precise requirement that we find the Fire District has violated. The Fire District shall have ten (10) business days to respond

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to this Department‟s concern that the violations are “willful or knowing.” A supplemental finding will be issued. VIOLATION FOUND. Issued March 9, 2015.

OM 15-03B Novak v. Western Coventry Fire District

The Western Coventry Fire District violated the OMA when it failed to timely post the unofficial minutes for its September 18, 2014 meeting. The OMA requires that “all volunteer fire companies, associations, fire district companies, or any other organization currently engaged in the mission of extinguishing fires and preventing fire hazards, whether it is incorporated or not, and whether it is a paid department or not, shall post unofficial minutes of their meetings within twenty-one (21) days of the meeting, but not later than seven (7) days prior to the next regularly scheduled meeting, whichever is earlier, on the secretary of state‟s website.” R.I. Gen. Laws § 42-46-7(b)(2). (Emphases added). This section of the statute was enacted into law on June 15, 2013, and became effective upon passage. The Fire District filed the minutes for its September 18, 2014 meeting on October 14, 2014 when they should have been posted by October 9, 2014. Accordingly, this Department will file a civil lawsuit against the Fire District. LAWSUIT FILED. Issued April 13, 2015.

OM 15-04 The Valley Breeze v. Cumberland Fire Committee The Cumberland Fire Committee (“CFC”) violated the Open Meetings Act (“OMA”) on November 6, 2014, when a quorum of the CFC met outside of a properly noticed open meeting and collectively discussed public business, i.e., the future chair and vice-chair of the CFC. See R.I. Gen. Laws § 42-46-2(1). While, at the time in question, the members of the CFC had not been officially sworn in, this Department has repeatedly held that members-elect are subject to the OMA. See Offer v. Newport City Council, OM 95-31. See also Schanck v. Glocester Town Council, OM 97-03. Other aspects of the November 6, 2014 meeting did not implicate the OMA, and accordingly, these discussions did not violate the OMA. VIOLATION FOUND. Issued April 13, 2015.

OM 15-05 Cushman v. Warwick Retirement Board

The Warwick Retirement Board violated the OMA when it held a meeting on less than forty-eight (48) hours notice, see R.I. Gen. Laws § 42-46-6(b), and when it discussed matters not appropriate for closed

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session in executive session at its March 18 meeting. See R.I. Gen. Laws § 42-46-5(7). Based on the totality of the circumstances, we have concerns that the violations found may be willful or knowing. Before reaching a conclusion on whether the Board knowingly or willfully violated the OMA by holding its March 4, 2015 meeting on less than forty-eight (48) hours notice and by discussing matters in closed session that were not appropriate under the exemption cited, we will allow the Board ten (10) business days from the receipt of this finding to address these issues. A supplemental finding will following. VIOLATION FOUND. Issued April 27, 2015.

OM 15-05B Cushman v. Warwick Retirement Board After viewing all the evidence presented, this Department determined sufficient evidence to conclude that the Warwick Retirement Board knowingly or willfully violated the OMA when it posted notice and convened its March 4, 2015 meeting on less than forty-eight (48) hours notice and when it discussed matters in executive session not appropriate under the exemption cited at its March 18, 2015 meeting. Accordingly, this Department filed a lawsuit against the Warwick Retirement Board seeking civil fines. See R.I. Gen. Laws § 42-46-8. LAWSUIT FILED. Issued May 12, 2015.

OM 15-06 Appolonia v. West Warwick Board of Canvassers

The West Warwick Board of Canvassers (“Board”) violated the OMA during its October 27, 2014 meeting when it discussed an item not listed on the agenda. More specifically, the Board discussed and voted on procedures regarding poll worker contact, yet that item was not listed on the agenda. During the Board‟s October 27, 2014 meeting, under the agenda item “General Discussion,” the Board began a rather lengthy discussion on poll worker contact. The Board decided, through a motion and a vote, to send the Complainant a correspondence indicating that the clerk of the Board would not be contacting poll workers for either the Democratic or Republican Party - it was the responsibility of both the Democratic and Republican Parties to contact their respective poll workers. As such, the Board violated the OMA when it took a vote during the public forum portion of the meeting, yet that item was not advertised. VIOLATION FOUND. Issued May 15, 2015.

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OM 15-07 Novak v. Western Coventry Fire District The Western Coventry Fire District (“Fire District”) violated the OMA when it untimely posted on the Secretary of State‟s website approved minutes of seven (7) of its meetings. The Fire District also violated the OMA when the evidence revealed that it failed to post official and/or approved minutes for two (2) other meetings. Rhode Island General Laws § 42-46-7(d) requires “all volunteer fire companies, associations, fire district companies, or any other organization currently engaged in the mission of extinguishing fires and preventing fire hazards, whether it is incorporated or not, and whether it is a paid department or not” to “keep official and/or approved minutes of all meetings of the body and shall file a copy of the minutes of all open meetings with the secretary of state for inspection by the public within thirty-five (35) days of the meeting.” R.I. Gen. Laws § 42-46-7(d).

VIOLATION FOUND. Issued May 15, 2015. OM 15-08 Higgins v. Lonsdale Fire District

The Lonsdale Fire District violated the OMA when it failed to articulate a proper open call by omitting the subdivision of R.I. Gen. Laws § 42-46-5 upon which the executive session was convened. VIOLATION FOUND. Issued May 21, 2015.

OM 15-09 Thibeault v. Smithfield Town Council

The Complainant alleged that she was prevented from taking notes at the Town Council‟s March 19, 2015 meeting. Specifically, Complainant alleged that the Town Manager “informed [her] that the rest of the meeting was „off the record‟ and that [she] could not report on anything that was said.” In Pine v. McGreavy, 687 A.2d 1244 (R.I. 1997), the Rhode Island Supreme Court was confronted with a situation where a moderator of a financial town meeting caused a reporter to be ejected. The Court held that “the moderator is only the presiding officer of the financial town meeting and cannot in and of himself or herself constitute a public body.” Id. In the present matter, the evidence showed that Complainant‟s allegations pertained specifically (and only) to the Town Manager and no argument or evidence was presented that the Town Council, or its members, precluded Complainant from taking notes at the March 19 meeting. Therefore, following the Supreme Court‟s reasoning in Pine, we concluded that the Town Manager‟s alleged actions did not constitute an OMA violation on behalf of the Town Council. Issued June 18, 2015.

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OM 15-10 Pitochelli v. Town of Johnston The Johnston Town Council did not violate the OMA since the evidence established that the Town Council articulated its open call in open session and disclosed any votes taken in open session at the conclusion of the executive session. The evidence also established that the executive session was properly noticed, and in any event, the Complainant was present at the time the executive session convened. Accordingly, the Complainant was not aggrieved.

Issued June 23, 2015. OM 15-11 Fuller v. Westerly Town Council

The Complainant alleged the Town Council violated the OMA during its December 8, 2014 meeting, when it improperly met with the School Committee Chairperson in executive session. The Complainant also alleged the Town Council met in executive session for the improper purpose of developing interview questions, establishing qualifications and obtaining advice regarding municipal positions, including the position of Assistant Solicitor for Schools. The OMA does not expressly govern who may attend executive or closed sessions and we found nothing within the OMA, nor were we directed to any provision, that would enable us to conclude that the Town Council violated the OMA by including the School Committee Chairperson during the portion of the executive session where the Town Council was interviewing candidates for the position of Assistant Solicitor for Schools. Our in camera review of the executive session minutes and audio recording also revealed that the School Committee Chairperson exited the executive session prior to the start of the interviews and that the executive session did not consist of establishing qualifications nor developing general interview questions. As such, we found no violation with respect to that allegation. Issued June 25, 2015.

OPEN MEETINGS ACT

ADVISORY OPINIONS – 2015 NONE

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CHAPTER 46

OPEN MEETINGS

42-46-1. Public policy. — It is essential to the maintenance of a democratic society that public business be performed in an open and public manner and that the citizens be advised of and aware of the performance of public officials and the deliberations and decisions that go into the making of public policy.

42-46-2. Definitions. — As used in this chapter: (1) “Meeting” means the convening of a public body to discus